Two Advance Opinions for 3-21-24

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4 months 15 hours ago #243 by Joseph Allan Tommasino
(1)


Gee v. State,



140 Nev. Adv. Op. No. 16



March 21, 2024



nvcourts.gov/supreme/decisions/advance_opinions



Appeal from a judgment of conviction, pursuant to a guilty plea, of driving under the influence resulting in substantial bodily harm. Eighth Judicial District Court, Clark County; Mary Kay Holthus, Judge.



Affirmed in part, vacated in part, and remanded.



BEFORE THE SUPREME COURT, STIGLICH, PICKERING, and PARRAGUIRRE, JJ.



By the Court, STIGLICH, J.:



Issue #1:



Is an order of restitution required to be based on competent evidence?



Brief Answer #1:



Yes.  “First, under Nied v. State, 138 Nev., Adv. Op. 30, 509 P.3d 36 (2022), and its progeny, we reiterate that an order of restitution must be based on competent evidence.”



Issue #2:



“Second, we address whether a defendant's restitution obligation to the State of Nevada Victims of Crime Program (Victims of Crime) should be offset by the amount the defendant's insurance provider paid to the victim for the same losses.”



Brief Answer #2:



“Because appellant Demitri Gee challenged the amount requested for Victims of Crime and the State failed to present evidence to support it, we conclude that the district court abused its discretion by ordering restitution not supported by competent evidence. 



Further, we conclude that the district court abused its discretion by failing to evaluate whether the award to Victims of Crime needed to be offset by the compensation provided to the victim through Gee's insurance.



Accordingly, we vacate the $9,940 in restitution that was awarded to Victims of Crime but otherwise affirm the judgment of conviction. 



We remand for further proceedings as to restitution and instruct the district court to determine what, if any, portion of the $9,940 should be offset by the payment from Gee's insurance.”



(2)


Draskovich v. Draskovich,



140 Nev. Adv. Op. No. 17



March 21, 2024



nvcourts.gov/supreme/decisions/advance_opinions



Appeal and cross-appeal from a district court decree of divorce. Eighth Judicial District Court, Family Division, Clark County; Bryce C. Duckworth, Judge.



Reversed in part, vacated in part, and remanded.



BEFORE THE SUPREME COURT, CADISH, C.J., and STIGLICH and PICKERING, JJ. 



By the Court, CADISH, C.J.:



Issue:



“In this divorce case, we consider whether a law firm, established by one spouse before the marriage and incorporated under a different name during the marriage, constitutes that spouse's separate property.”



Brief Answer:



“We hold that the district court erred in determining that the law firm was entirely community property because the uncontested evidence demonstrated that, even after incorporation, it was a continuation of the spouse's original, separate property law practice, and thus, the presumption of community property does not properly apply. 



Further, because the district court refused to award alimony based in part on its erroneous community property determination, we necessarily vacate that ruling and remand for further proceedings consistent with this opinion.”



Joe T.

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